19771015 TZHC Singida

- - 43 IN TIT, HIGH COURT OF TANZANIA AT SINGIDA ORIGINAL cTtLISDICTION (DoDo RFJcTISTRy) CRIMINAl; S E S S 10 FS CA.L 1\To.i 84 OF 1976 THI R2UBLIC versus NASANJA @ OMARI s/o EW1i OHARGE: Murder c/s 196 of the Penal Code. JUDGNLNT 10 CHIPETA 9 J. The accused person in this case, Masanja @ Oman sb Fflewa, stands charged with the offence of murder c/s 196 of the Penal Code. The prosecution has alleged that on or thout the 4th day of June, 1976r in Singida Region, the accused • murdered one Anima Selenani.. The accused pleaded "not iilty" LN to the charge.- To grove the charge, the prOsecution adduced' the foiloing evidence: the eceasèd, AminT Selemani, was the wife one Oman Mussa (Pw.i), and the tine Of h-r death she 20 was living with her husband at Kuondo village, in Singicia district. Before moving to Mxioncio village the deceased and Pw.1 lived at Misungwi village where the accused also resided and continued to reside until tho day of his arrest. While Pw. 1 aid the deceased were living at Miingwi village Pw.1 canght the accused on two Occasions committing adultery with the deceased.P.1, however, decided to forgive the accused and so took no action other than warning the accused not to repeat it. After Pw.1 and the deceased had moved to Muondo village, 30 and not long before the deceased was murdered, Pw.i again •caight the accused comaittirig adultery i ,,rith the deceased. This time Pw.1 roi - ortod the matter to his neigh- bour, One Juma Hassan (Pw.3). Pw.3 then called in elders 'who then discussed the matter in the resence of Pw.1 , Pw.3 1 the deceased and the accused. The accused and the deceasd apparenly admitted thti adultery, and so the elders told the accused to pay she. 140/- to Pw.1. It would a -.),)ear that the accused either refused or failed to pay the amount. So the elders advised Pw.1 to te the matter further. Pu.l y 40 on the other hand, r;fused to take further action against the accused. He merely insisted that the elders should warn the accused to stop his aultercus associaticn with the 4 deceased. At that meeting, the dec a sod herself said that ho would no longer have any affair with the accused bocOuo for two years that she had boon the accused's paramour, the accused had given her only she. 5/-. She told the accused at that ti. etin,r; that their sexual .±olationship was over. At about 3.00 p.m. on 4th June, 1976, Pw.1 lofthis 50 hcuoe and wont to the huth to look for barks of trees, leaving the docea sod with their two children at hone. - 44 - a On his return from the bush at about 4.00 p.m. Pw.1 found the two children crying. When he asked thou Why they were crying, they told him that their mother had died on The way to a well. P.i then roceoded to the scene. On arrival at the scone, which was eerie 256 paces from his house, Pw.1 saw tho dead body of the deceased lying on its back in the middle of tho path loading to the well. He observed that the dead body had cut wounds on the bck of the neck on the chest, ond on the shoulder. 10 On soing that, Pw,1 raised an alarm and many POO?lC CiO to the scene. As it was by then dark, they decided not to disturb the dead body. They all slept at the scene. In the &iall hours of the following morning, the accused end one Iddi Abdallhh (± w .5) were sent tc go and report the matter, at Sepuka police station. The accused and 7u 1 5 proceeded to Sopuka police station whore they reported the death of the deceased to D/C Abdallah (Pw.8) Pw.8, then told thou to wait for him at Sepuka police station Whilo he went to Sinida to fetch a vehicle. Howover,20 4P before the police officers returned to Sepuka police station, the accused disappeared from Sepuka police station without telling Pw5 arid Pw.5 himself did not see the accused leave. Eventually, Pw.5 also loft for his house. At about 6.00 p.m. Pw.8 and Detective Sergeant-Major Sabinus Kwoka (Pw.9) arrived at the scene. In the course of examining the dead 1dy, they saw a nylon right foot shoe lying under the dead body of the deceased. Pw.1 , 2 w.3, end one Rmmadiiani hdaki (Pw.4) who is a step- fat]r of the accused, identified the shoe to belong to the 30 accused. The accused, however, was not at the scene. The police officers seized the shoe and kept it as an exhibit. Under and around the dead body of the deceased was a pool of blood. The police officers also noticed that the re were marks of a strugle around the scone. The police officers then took some of the blood which was mixed with sand at tho scene for analysis.. The dead body was then ta1:on to Singida Government hospitel tihere Dr. Sowoki (Pw.2) conducted a post-norton examination on it. Pw.2 observed that the deceased had an 40 extensive cut wound Which inèluded the posterior'part of the neck. The spinal cord cervical vertebral end jugular venis and arteries were all severed. There was another lacerated wound on the left side of the chest measuring 6x+ t x4 fl . The doctor oDined that those injuries wore caused by a sharp weapon end that great force wa( used to inflict them. As a result of his examination, the doctor was of the opinion that the cause of death of the deceased was haemorrhagic shock due to the extensive cut wound on the neck. 50 Before they loft the scone, the two police officers left instructions to the people in the area that they should arrest the accused as soon as they saw him. When Pw.4 returned to his village, he told the accused that a shoe belongi.ng to the accused had been found at the scene end asked the acusod how' that shoe cane to be there. The accused, however, said nothing. - 45 - On the day the accused returned from Fepuka police staon his grandmother (Pw,6) d not notice any injuries on the person of the accused. Pw9 later went to Misungwi vil]age where the accuzec1., Pw.4 and Pw.6 lived. Shortly before or shortly after Pw.9 arrived at the village, Pw.4 saw the accused leave the village in a huriy for some unknown place. Pw.9 then proceeded to search the house inuhich the accused lived. In the course of the search, Pu.9 found two axes in two different locally made boxes. The 10 two axes had red stains which appeared to be blood stains. Also found in that house was an axe handle. Pw.9 also found a pair of short trousers which also appeared to have blood stains. According to I"w.6, one of those axes belonged to the accused, and accused used to use it. The ether axe belonged to her but she had not used it since she bought it because it had no handle. Pw.9 seized oil these articles end kept them as exhibits. I. i.eanwhile the villagers continued to look for 20 the accused. They went to the acc usedts house, but could not find him. some three days after tbe death of the deceased, four of the villagers aprehended the accused at his house at about 10.00 p.m. Those who aprehended the accused included Pw.5 end Pu.7. They told him that they were arresting him for the murder of the deceased Amina Selenani, but the accused did not say anything. The arresting Darty thEn seized a pair of trousers and a shirt which bonged to the accusd. They then took the accused to Sepuka police station where they handed him over to Pw.8 30 They also handed over the shirt and pair of long trousers. In turn 11w.8 took the aCcused and those articles which he ha kept as exhibits, to Singida. At Fdingida, he banded over the exhibits to Pw.9. He also left the accused in the custody of Pw.9 as it was Pw.9 who was investigating the case. Pw.9 then took thc accused to hospital for examination. The examination of the accused. revealed that he was aged 28 years, was mentally normal, end that his blood group was B positive. 40 In the :presonce of the accused, Pw.9 sealed all the exhibits whida he hinscif 1iad seized as well as those handed over to him by Pw.8, and then sent them to the Government Chemist DTSS1eon for analysis. The Govonaraent Chemist duly analysed t1 articles and prepared a report of his findings. The following were his findingC: the sand collected at the scene contained human blood, but the blood &7oup could not be determined one - of the two axes had human blood, but the Iflood group could not be dterined; thile the other axe had no human blood; 50 the nylon shoe had human blood, but the blood group could not be deteminod, the shirt contained human blood of grup B; the pair of long trousers also contained human blood, but the blood group could not ho detomined; end the pair of short trousers had no human blood. PM 46 In his defr.nce, the accused made an unsworn statencnt and no witnesses 0 In his unsworn statement, the accused said •hat on that day he went to the bush to cut mininqa trees0 After -utting two or three, he accidentally cut his leg.. So he deciLad to go home.. On hi way home, he saw something had fallen down in the middle of ta path.. He then ran straight home.. The accused, however, did'iot elaborate.. On arriva at home he changed his clothes and kept the oild clothes i a bc ally made box.. At about 4..00 p..m.. his Ce grndmother (Pw..- told hir, that his father (Pw..4) was ill.. So he went to see Shortly after that they went to where the alarm was made nd they slept at the scene.. In the small h0u. of the morning, they went to report to police, and then retu....d home while his colleague also left for his own home.. The used made no reference to the allegation that he disa1. 1 eared fro: epuka police station unnoticed.. On arrivil at home, ate food, and then decided to go back to the sene.. On the 'y h met his friends who told him that police hd taken awe ic dead body.. So he went back home.. 20 The accusd, made no rei rence to the allegation that his shoe had been ound under th€. 'ead body of the deceased at the scene.. During final submissions, Mchora, learned state attorney for the Republ, and Mr.. MbeZi,'earn.d counsel for the defence, were ..reed that on the iidence it cannot be disputed that Amina d/o'elumani is dead; 'it she died a violent death, arid th..t from t nature of tee I.i .ries she s ;tained, malice aforethought, a necessary ingradie' of the offence of murder, can he inferred an the part of the 'son who caused th death of 30 the deceased.. 'Jith these ob r-;et ', respectfuLly agree.. The only issue is: o caused deceasedts .th? The 1-arnedstatei attorney submi --i that the circumstantial evidence in this case has brought out se. ral inculpatory facts.. In the first pl'e, he submitted, the sh'. found under th dead body of the dece - sed had been positively -itified by three witnesses and that this piece of evidence P ed the accused at the scene of crime.. T , added that in view of the 'iclence that there were marks of a struqgle at the scene, - considering the fact that that sloe is such that it could easi come off oncts foot in a strugge, the rrcSSt!'.1Oinference that the wearer of that s oe had a struggle with the dece. d. The next inc:5 minating fact, thn learned state e was th: presence of human blood on one 0:1- submittd, the shirt and pair of long trousers.. In his submisat sinc Pw..6 noticed no inury on the accused then the human a d found on the three exhibi:s could not have h•en that of the cad.. The next incrir.tnating fact, learned counsel submito was the fact that the ecused was avoiding arrest, and that his 'rest only became possible at night, and even ther,it had to 1 b' v of 50 ambush.. The final incrirn: iating circumstance, the learned state attorney submitted, we.' the fact that when Ramac1hfli Nciaki (Pw.4' asked the accused how thE accus'd's shoe cam. to he under the dead body of the dccc asd, the accused remained speechless.. - 47 - The learned state attorney concluded by submitting that although in a murder ttrial the prosecution is not required to prove motive, motive had hen proved in this case, namely that the accused stooi to lose a cheap if not a fre way of having sexual intercourse because the deceased had decided to end their sexual relationship0 In his final submission, the learned counsel for the defence submitted that the incriminating circumstances could be explained innocently0 In his submission, the presence of blood on the axe and the clothes could be explained by the statement of the accused 10 that h. had cut himself while cutting trees in the bush, nd that Pw 0 6 might have seen the accused after the bleding had stoppod, and that in any case, the cut wound might have been on same part of the leg where Pw 0 6 a grandmother of the accused, could not have seen it0 As to the disappearance of the accused from Sepuka police station learned counsel submitted that since the accused hd ' not eaten for a long time, it is safe to infer that ho was hungry and that he did not tell Pw05 of his departure because ha feared o:position from Pw05. 20 on the allegation that the accused was avoiding arrest, learned counsel submitted that there was no evidence that people went to his house at night, or that they gave him an a; :pointmont which he failed to keep0 On the question of motive, it was learned counsel's submission that the prosecution had failed to prove motive because the accused ought to have been the last person to wish the death of the Jeceased in view of the conduct of the husband who had so far taken no action against the accused, and so all that the accused needed to do was to persuade the deceased to h:.ve 30 sexual intercourse with him or give more consiJoration. Turning to the question of the shoe, learned counsel submitted that th.2 shoe had not been positively identified as belonging to the accused0 In the alternative, he submitted that if the court fin -Is as a fact that the shoe -lid in fact belong to LI'i accused, the court should furth:r consider the possibility that as the shoe was worn out, the accused mieht have thrown it away befre the deceased of the deceased and that the deceased fell dcun over it where the accused had thrown it away; and the further possibility that th shoe might have dropped when the accusecI ran 40 away after seeing something, and that in the convulsions of death, the body of the deceased came to lieover that shoe0 He further asked the court to consider whether the wearer of that shoe must necessarily have been the person who murdoreci the deceased0 After my summing-up to the two gentlemen assess.rs, both gentlemen assessors were satisfied that the shoe had hen positively identified as be1nging to the accus' J, and rejected the accused's story0 Each of them accordingly found th: accused guilty of murder0 50 As I told tho gentlemen assessors, th - prosecution's case dedends entirely on circumstantial evidence0 But there is ampl authority f or the proposition that it is no ero.ji- .tion of evi lence to say that it is circumstantial as was stated in TUMUHEIRE V UGANDA (1967) E.A. 328, at page 331: C, - 48 "It should be observed that there is nothing derogatory in rcerring to evidence against an accused as circumstantial0 Indeed, circumstantial evidence in a criminal case is often the best evidence in establishing the commission of a crime by a person as in the present case0" In the English case of R v. Taylor Weaver and Donovan (1928) 21 Criminal Appeal R. 20,circumstantial evidence was exalted in th following words: "Circumstantial evidence is very often the best 10 evidence0 It is evidence of surrounding circumstances which, by intensified examination as capable of proving a proposition with the accuracy of mathematics0 It is no derogation of evidence to say that it is circumstantial0 It However, and as I warned the gentlemen assessors, before basincj a conviction on purely circumstantial evidence, the court must be satisfied beyond reasonable doubt that the inculpatory facts are incompatible with the innocence cI the '3ccuscc1 and incapable of explanation upon any other reasonable by 20 ,hypotboi Othcr than that Cf the accused's guilt0 (R v. Kipkering arap Kosko and Others, 16 EA0C0A0 135, 136). In other words, the circurstantial evidence must lead rre stahJyto the inference of guilt0 If there are co-existing circumstances which weaken or destroy the inference of guilt then such inference of guilt ought not to be drawn0 It is for this reason that it has been held that circumstantial evidence must always he narrowly examined because, among other thinqs, such evidence, as with direct evidence, may be fabricated in order to cast suspicion on another. (Teper v.R. 30 (1952) z.00 489) With those principles of law in mind, I now proceed to evaluate th. - evidence to sea what facts have been established, -nd whther or not on the established facts an inference of guilt is irresistible 0 I will start with the evidence r lating to the shoe0 On this there is the evidence of Pw01, Pw03, and Pw,40 With respect, I -çrc with the learned counsel for the defence that the evidence of Pw01 as to the identification of the shoe is not satisfattory0 In examination-in-chief this witness FUG categorically said that he had never seen that shoe before0 It was only in answer to a question by the first gentlemen assessor that this witness said the shoe belonged to the iccused. This apa ars to me to hive been an afterthought on the dart of the WI ui S S. The evidence of Pw.3, however, stands on a different footing. H. described the shoe before it was shown to him, and gave a description of the circumstances in which he came to he familiar with tha shoe I accept this witness to be truthful and his • :vJdcnce of identification o the shoe to be cogent0 50 Th evidence of Pw04, a step-father of the accused,was even more positive0 H e described the appearance of the shoe and its peculiar identifying marks, one of which is a black patch, 0nd th shoe does hwe a black patch. Pw.4 had been living with th. accused in the same village continuously for about a year. I am therefore satisfied that Pw.4 is not only a truthful witness, but also positively identified the shoe as belonging to the accusd. 49 - On the evidence, therefore, I am fully satisfied and find as a fact that the shoe belon's to the accused and that it was found under the dead body of the deceased at the scene at Nuondo flhlage at a time when the accused was residing at Misungwi village. I now turn to the )resence of human blood on the accused's clothes and on one of the two axes. Here it is import ant to consider the accused's story. Having seen and heard the accused as he gave his statement, and having considered the entire evidence, and that of Pw,6 in particular, which is to the effct• that she saw no injuries on the person of the accused 10 I am in no doubt at all that the accused was lying on this point. I am satisfied that he did not cut himself with the axe as he alleges. Clearly, the accused dragged in this story to try to explain away the presence of human blood on his clothes and the axe. It therefore follows, and I so find, that the human blood found on the clothes and the axe is not that of the accused. As to his disappearance at Sepuka police station, I do not think that can be disputed. I accept the evidence of Pw,5 ' that the accused and Pw,5 were told to remain at the 20 police station until Pw,8 returned from Singida with transport, and that the accused disappeared from there surreptitiously. On the allegation that the accused was avoiding arrest, the accused again never alluded to this. But it has been argued that there was no evidence that the people went to accused's house at night and missed him. With respect, there is the evidence of Pw,4 that the accused left the village in a hurry shortly before or after the arrival of Pw,3 at the village; and there is also the evidence of Pw.7 that they went to the accused's house and missed him. I am, therefore, satisfied that 30 the accused made some attempt to avoid his arrest. One more matter. From the evidence of Pw,6 and the statement of the accused, it is clear that the accused was using one of the axes. From the evidence of Pw,9, it is also clear that both axes were found in sori locally made boxes without handles, and the handle was found separately. On the question of motive it has been argued that the prosecution had not proved motive, because the conduct of Pw,1 must have left tue accused with the hope of continuing his love affair with 40 the deceased either by persuading her or giving her more consideration. with reseect, I am not persuaded by that reasoning. It was not the cendaxct of Pw.1 that was of great consequence to the accused. Re,ther it was the conduct and the express words, of the deceased that were likely to irritate the accused who hd been the deceased's p ramc'ur for about two years. In my view s and on the evidence, the accused could not have taken kindly to the deceased's categorical statement that their illicit fiendship was over. I am accordingly satisfied that the prosecution h s proved motive on the part of the accused. Ilotive, of course, need not he proved in a charge of murder, 50 However, the preseace of motive on the part of an accused person may in certain cases suggest malice aforethought and enhance the credibility of allegations against an accused person, just as its absence may weaken such credibility or destroy the inference of malice aforethought. Now the question of moment is whether the inculpatory facts S I have found them, lead irroi'ab1yto the guilt of the accused or admit any other reasonable by bypothosis. - 50 Learned counsel for the defe ce had putforward ingeniens theories as to hand the accused's shoe could have come to he at the scene of crime. With great respect, I cannot accept any of his theories as constituting reasonai1e possibilities 0 Those '.. theories are clearly extravagant fantasies0 In my considered opinion, the presence of the eccused' shoe at the scene places the accused at the scene0 In view of the fact that the shoe of the accused was found at the scene; the fact that there was a struggle at the scene and the nature of the shoe itself, I ani loft in no doubt at 11 that the wearer of that shoe was 10 engaged in a struggle with the deceased before she met her death0 This incriminating fact is reinforced by the presence of human blood on the clothes and the axe of the accused the fact that he surreptitionsly dissapread from Sepuka police station; that he attempted to ivoid arrest; the fact that he hid his axe in a box; and his dismal failure to give some expi action as to how his shoe came to be at the scene0 # On a carefull consideration of all the circumstances revealed by the entire evidence, I hold that the inculpatory facts1rrOSibTpbint to the accused as the person who killed 20 the deceased0 On these grounds, and in agreement with both gentlemen assessors, I am satisfied that the prosecution has proved its case bayord reasonable doubt against the, accused person0 I accordingly find the accused guilty of murder as charged, and I duly convict him of that offence forthwith0 B. D. CHIPETA JUDGE 15/10/77 Coram: As before JucIginent delivered in open Court this 15th day of October, 30 1977. B. D. CHIPETA JUDGE Mr,Mchcra: Accta .'d is a first offender Mr. Mbezi: My Loid, Your hands are tied0 But accused is a first offender. Accused: I hive nothing to say. SENTENCE: You, Masanja @ Omari s/a Mlewa, have been convicted of. • this very serious offence for which there is only one penalty., and that is death0 I therefore sentence you to death and you shall 40 suffer death by hanging 0 B. D. CHIPETA JUDGE. 15/10/77 Right of appeal xplained 0 B. D. CHIPETA JUDGE, Assessors thanked and discharged. B. D. CHIPETA JUDGE.,-15/1O/77